Wherever law ends, tyranny begins.
John Locke
The last couple of weeks have been particularly disquieting for the International Criminal Court (ICC). Prime Minister of Hungary, Victor Orbán, not only hosted Israeli Prime Minister Benjamin Netanyahu (who is subject to an ICC arrest warrant) but also announced his intent to withdraw Hungary from the ICC. Then came the news that Belgium would not comply with its ICC obligation to arrest Netanyahu were he to visit. And then came the Reuters news “exclusive” on the ongoing investigation of ICC Prosecutor Karim A.A. Khan KC for sexual harassment, obstruction of justice, and intimidation of witnesses. Old news, but if any of the reported damning details are proven, Mr. Khan will have disgraced himself and the Office of the Prosecution (OTP). More on this below.
Even before the news came out of Hungary, the ICC was having a rough go at it. Poland, France, Germany, Italy, and the UK have questioned the validity of the Netanyahu arrest warrant. These founding members of the ICC have all but categorically expressed their unwillingness to arrest Netanyahu. Effectively, they are rejecting the legal proposition that the treaty-based ICC – to which they have entrusted limited and narrow sovereignty and jurisdiction – has the authority to deny sitting Heads of States immunity from arrest and prosecution, and more to the point, compel States Parties to act.
And what of Italy’s fiasco. Or was it? Italy released Libyan military officer Osama Almasri Njeem and flew him home to Tripoli two days after detaining him on an ICC arrest warrant. The pretzel-twist excuses from the Italian Government were as convoluted as they were farcical. The creatively contrived, incoherent confabulations flunked the proverbial smell test. Uncomplicatedly, the Italian Government took a decision based on its narrow national security and geopolitical interests. Nothing untoward or nefarious – just rational, necessary, and predictable behavior of a state placing its sovereign interests above the lofty, aspirational, malleable, and forceless ICC commitments. Italy should have been forthcoming; there was no need to obfuscate with gobbledygook excuses.
Ditto for Mongolia. With extravagant pomp and circumstance, figuratively flashing the middle-finger provocatively at the ICC, the Mongolian Government ignored its ICC commitments and lavishly hosted Russian President Vladimir Putin – also subject to an ICC arrest warrant. Presumably the underlying reasons were geopolitical and economic. Look where Mongolia is situated on the map and consider the identity of its neighboring states. Look at its economic interests, its capacity to fend for itself on its own (or more precisely, the lack thereof), its ties with China and China’s approval of Putin’s land-grabbing war. Could the Mongolian Government have realistically rejected overtures by Putin – perhaps also with a wink and a nod from Chinese President Xi Jinping – for a visit to strengthen Russian-Mongolian economic ties? Whether Putin’s ulterior motive was to expose the ICC as the toothless tiger he perceives it to be is irrelevant. What is relevant is that the ICC’s legislative (and essentially governing) body, the Assembly of States Parties, is powerless to do anything of consequence to Mongolia for its non-compliance – assuming, as I discuss below, Mongolia was obligated to comply with the arrest warrant.
Call it realpolitik, or simply, reality. States will always look after their perceived narrow interests before honoring international commitments that inconveniently get in the way. Swayed by entrancing rhetoric and the irrational exuberance of joining an “international” organization promising prestige and the recognition of having arrived on the world stage as a player in shaping the future – in shaping international justice – states flocked to subordinate part of their jurisdiction to the ICC. Now that the law of unintended consequences is kicking in (interfering with diplomatic initiatives and interstate relations and historical alliances and mutual interests), what seemed alluring in theory is proving to be constraining in practice.
It’s not until the rubber hits the road and tough decisions have to be made – decisions that implicate a state’s international relations, economic interests, and national security – that buyer’s remorse sets in. With the thrill, euphoria, and romanticism gone, shrewd recalibrations quickly supplant faithful adherence to international obligations. Even when tortured logic and fanciful interpretations transparently show a lack of compliance with obvious treaty and statutory obligations, States Parties are free to act as they please since there are no meaningful stimulative measures to penalize treaty-breakers. Those who cry hypocrisy can cry a river; international law and treaty enforcement have limitations, especially when there are no appreciable consequences for non-compliance.
So wherein lies the rub to these recent ICC challenges? Could it have something to do with OTP and Judges/Chambers hubristically overreaching their mandate in claiming jurisdiction where it may not exist, or where the jurisprudence is far from settled, far from crystalized, far from what the States Parties believed they had signed up for under the Rome Statute?
The founding states of the ICC baptized it as “international”. But is it truly? Despite its 125-state membership, many important and largely populated states, including three of the five permanent members of the United Nations Security Council (the US, China, and Russia) are neither members nor supportive of the ICC. Nor are India, Indonesia, and much of Southeast Asia. In the Middle East and North Africa, only three states have joined: Jordan, Tunisia, and Palestine (a state for ICC purposes, see here).
Effectively it is a club – Club ICC, as I have referred to it in the past. Club ICC is an association of states that have agreed to cede some of their sovereignty to a treaty-based court created for their mutual benefit. It is certainly not universal. Nor is the extent of its jurisdiction universal. Non-States Parties balk at the idea that they can unwittingly and unwantedly become subject to its jurisdiction. And now we see some of the keenest promoters in establishing, funding, and fostering the ICC openly disapproving and implicitly denouncing perceived prosecutorial and judicial jurisdictional overreach.
Club ICC members have obligations. So does the ICC – as the personification of the Club. These obligations are found in the treaty referred to as the Rome Statute. As with most treaties, there is an option of withdrawal – an essential pre-condition to joining Club ICC since some discretely limited state sovereignty is being ceded. Quoting John Locke’s famous maxim “wherever law ends, tyranny begins” may seem misplaced or hyperbolic, but it is proving to be a truism. When Club ICC members see the terms of the treaty upended by how the applicable law and procedure they agreed to are (mis)interpreted or (mis)applied by the OTP and the Chambers, their instinct will be to resist any perceived tyranny (real or imagined) through non-compliance or withdrawal.
Guarding against a runaway prosecutor gone rogue, the Club members entrusted the Judges with safety measures and circuit breakers. A good example is reflected when the OTP decides proprio motu to initiate an investigation after conducting a preliminary examination of a situation. The Pre-Trial Chamber (PTC) is the initial circuit breaker. The Appeals Chamber is the circuit breaker for the PTC getting it wrong – extending the ICC’s jurisdiction beyond the letter and spirit of the Rome Statute. But there is no circuit breaker for the Appeals Chamber when they get it wrong. There is no third instance to monitor the monitors if you will. To borrow from the film Enemy of the State, “who’s gonna monitor the monitors of the monitors?”
Could it be that some Club ICC members are openly not complying with their obligations – such as acting on arrest warrants or ditching their membership – because of what they perceive as a blatant disregard of the terms of the Statute by the prosecutorial and judicial organs of the ICC?
By their treaty/Rome Statute obligations, Hungary and Mongolia were obligated to arrest and not lionize Netanyahu and Putin. Or were they? This assumes that the ICC has jurisdiction and that acting Heads of State enjoy no immunity from arrest. This issue has been raised twice at the ICC. Twice it decided in the affirmative. In both instances, however, the decisions lacked clarity and analytical rigor. One decision (the Appeals Chamber’s decision on former-Sudanese President Omar Al Bashir) relied on customary international law; the other (the PTC decision concerning Mongolia), relied on the Rome Statute. If so settled, so well understood, and so clear (and crystalized), why are the ICC Judges incapable of rendering consistent, coherent, and conclusive decisions based on unimpeachable legal authorities?
The lack of clarity on such an important jurisdictional matter has been deleterious. States Parties are calling into question the jurisdictional (over)reach of the ICC compelling them to arrest Heads of States and transferring them to The Hague. It is not that these states – especially the ones with long traditions of supporting and adhering to international norms – do not wish to comply with their treaty obligations. Rather, I suspect, it is about their treaty obligations as interpreted by the ICC: whether they are prevented from exercising their sovereign right to apply domestic and international law as they understand it to be.
The State Parties have specifically and intentionally denied the ICC Judges legislative authority. Hence their reticence to cede to the ICC their sovereignty and jurisdiction when Chambers exceed their law-interpretive authority and venture into law-creating enterprise. And so, could it be that what we are witnessing is not a jettison of obligations or a rejection of the ICC as an instrument against impunity within its remit, but a reaction against the ICC’s breach of the terms of the Rome treaty. Treaties must be kept under the principle of pacta sunt servanda, but when circumstances change, states are permitted to avoid their obligations under the principle of clausula rebus sic stantibus.
The US’s retaliatory sanctions imposed in the ICC in response to the Netanyahu and Gallant arrest warrants cannot be overlooked or minimized. But it would be a mistake to claim these sanctions and retaliatory threats from the Trump Administration and Republican controlled legislative branch as the exclusive or primary reason for some of the most prominent ICC States Parties to openly voice their disapproval of the jurisdictional (over)reach by the ICC OTP and Chambers. They did not sign on to the Rome Statute to subordinate and submit without reservation or recourse. Time for the OTP and Chambers to wake up and smell the coffee.
As I noted in my last post, this is an existential moment; the ICC is at a jurisdictional crossroads. Will the OTP and Chambers adhere to the strict treaty-based jurisdictional limitations negotiated by the States Parties and agreed to under the Rome Statute, or will they risk the gradual, self-inflicted, and humiliating demise of the ICC?
Immediately, there are two big tests. No, I am not referring to how the ICC will resolve the Netanyahu and Gallant arrest warrants. Key States Parties have no appetite to tussle with the US Trump Administration, although their reading of the Rome Statute, and their non-compliance in not arresting sitting Heads of State subject to OTP arrest warrants are not, as I’ve noted, mutually exclusive. Nor should their incompatible understanding of international law and their treaty/Rome Statute obligations be dismissed as unsound and unfounded. The two tests I am referring to are The Duterte Matter and The Khan Affair. The first deals with jurisdiction, the second deals with sexual harassment, obstruction of justice, and intimidation of witnesses with potential Article 70 ramifications.
The Duterte Matter
Much of it I addressed in my previous post but let me supplement. The ICC Judges were virtually out of work (nothing on the docket for the foreseeable future). Nothing appeared on the horizon, when, out of the blue, former Philippine President Rodrigo Roa Duterte was arrested on an ICC arrest warrant. Issued nearly 40 months after the OTP’s press release announcing its preliminary examination in the Philippines, it was based on an untimely request to the PTC for authorization to conduct a formal investigation as required under Article 15(3). For 26 months, the Philippines was no longer an ICC State Party. The OTP, inexcusably, failed to exercise the ICC’s jurisdiction within the one-year period it had under Article 127 of the Rome Statute from the time the Philippines gave notice of its withdrawal (as entitled) and when the withdrawal took effect. It matters not that the yet-to-be-proven alleged crimes may have occurred while the Philippines was a State Party. What matters is that the ICC ceased to have jurisdiction because of the OTP’s untimely (and thus statutorily barred) Article 15(3) request to commence an investigation. It may not sit well with victims, human rights activists, and civil society, but irrespective of judicial predilections and victim-centered sympathies embraced by some ICC Judges, they are duty-bound to strictly adhere to the letter and spirit of the treaty’s terms negotiated by the States Parties as reflected in the Rome Statute. No exceptions.
An intellectually honest reading of the Rome Statute shows that the ICC’s jurisdiction over Duterte has lapsed. It will take creative linguistic and interpretative gymnastics for activist/victim-centric/result-determinative Judges to conclude that a preliminary examination by the OTP – conducted without any transparency, disclosure, or scrutiny – can, by itself, and without consent or approval of the PTC, be considered an “investigation” so as to retain jurisdiction indefinitely over Non-States Parties post-withdrawal from the Rome Statute. Press releases by the OTP that it is conducting proprio motu preliminary examinations are not jurisdictionally triggering tripwires: they are neither formal requests nor authorizations from the PTC to initiate investigations pursuant to Article 15(3).
Suggestions that a preliminary examination somehow tolls the statute of limitations or seizes the PTC under the principle of “continuity of obligations” under Article 70 of the Vienna Convention on the Law of Treaties, as the PTC reasoned in paragraph 111 of its Decision on the Prosecutor’s request for authorisation of an investigation pursuant to Article 15(3) of the Statute dated 15 September 2021 is poppycock. As is its reliance on previous PTC decisions in Burundi and Abd-Al-Rahman. A first-year law student would make mincemeat of the PTC’s legal analysis and use of these cases; they are demonstrably distinguishable, inapplicable, and unsupportable of the legal/statutory proposition for which they were offered as precedent.
However you slice or dice it, the PTC’s reasoning is shockingly unsustainable and mercilessly susceptible to attacks by any and all main types of legal argument to which legal decisions are scrutinized: plain reading of the text, intent/purpose (as reflected by legislative / travaux préparatoires), precedents (stare decisis), tradition or custom, and policy. Disregarding the factual and legal distinctions in precedent, and overlooking the clear text of the Rome Statute in order to reach a predetermined outcome – such as avoiding dismissal of a case due to the OTP’s failure to timely assert jurisdiction – constitutes a judicial coup d’état: an unauthorized assumption of powers and discretion not granted to the Judges or Chambers. It is this sort of judicial activism that alarms some ICC Club members. Understandably so.
The Khan Affair
Nothing has been proved. Are the allegations unfounded, perhaps the handiwork of foreign intelligence services that wish to have Mr. Khan replaced with a more pliable prosecutor willing to withdraw the Netanyahu and Putin arrest warrants? Are the allegations part of a honeytrap or kompromat scheme? No telling what the ongoing investigation will reveal – assuming the investigation is fair, comprehensive, and transparent. What is obvious thus far is that Mr. Khan has yet to be interviewed.
Considering how investigations should be conducted, this seems odd. What is taking so long? Why not interview him early and if necessary, again and again – just as OTP investigators routinely do. Mr. Khan has expressed his willingness to fully cooperate. Why not expeditiously take him up on it? It is in the interest of the ICC, the OTP, the complaining witnesses, and especially Mr. Khan, to have these allegations investigated without any shenanigans. The alleged conduct is either supported by credible and reliable evidence, or it is not. Having been around a bit, I feel comfortable saying the investigation and findings of a case of this size, nature, and lack of complexity, should take no more than three (3) months.
The ICC, and particularly the OTP, has much riding on this investigation. How it is conducted and what steps are taken thereafter will impact on the image, credibility, and righteousness of the ICC. With the passage of time for such a simple investigation, concerns of a coverup are being raised. Also, a delay in a decision that exonerates Mr. Khan is equally pernicious; he deserves expeditious due process and the preservation of his name and reputation, should the evidence – uncovered by an independent and reliable investigation – show a lack of any sexual harassment, coverup or acts of intimidation and retribution. The ICC can ill afford a debilitating, slow-motion public relations fiasco. Taking The Khan Affair lightly, dragging it out in hopes it will be forgotten, or sweeping it under the rug, are short-sighted, amateurish tactics best avoided. For now, the elephant in the room is the simple and obvious question: what’s taking so long?
Failing either test could have long-lasting, even debilitating consequences for the ICC. How the PTC and Appeals Chamber handle The Duterte Matter and how The Khan Affair is investigated and handled, will determine the ICC’s integrity and durability. It’s not (yet) midnight for Club ICC. However, it does seem to be on the verge of becoming irrelevant, remembered only as the exultant “international” judicial engine that could not.
If Club ICC fails, blame not the visionary architects but those entrusted to implement that vision.
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Thank you for an interesting opinion piece. I get a sense that as someone who has spent many years involved with the ICC you are left bemoaning the present status of the court, its effectiveness, even its future. Not being a lawyer, I can’t give an opinion as to the legal intricacies at play here with the basis for warrants and arrests, etc. However, having watched the international scene for decades (particularly the last 10 years in the US) it depends on who wins/dominates conflicts and whose populace stands behind such leadership. Individuals seem to fall foul of ICC arrest warrants when they fail on both accounts (as many of your defendants no doubt found). The actual basis for arrest warrants appears secondary to simple access to individuals. As you further indicate, countries to which ‘sought’ individuals might travel, likewise align their actions with their self-interests; particularly as that relates to their relationship to a superpower. Again, thanks for an interesting perspective.
It is not correct to say that Belgium would not comply with its ICC obligation to arrest Netanyahu. Answering on a question related to a hypothetical situation (emergency landing of his plane in Belgium), the prime minister gave a personal opinion on that issue not shared by the government as such, but had to admit later that in the Belgian legal framework, the execution of an ICC warrant is a decision of the judiciary only that the government cannot oppose (same as for a European arrest warrant).